A Brief Legal History of Same-Sex Marriage

Important legal details about the history of same-sex marriage in the United States.

In 1971, two Minnesota men sued for the right to marry under that state’s marriage statute. Their case was unsuccessful, but in the last two decades several other important cases have changed the legal landscape for same-sex couples that want to marry.

Hawaii: Baehr v. Miike

In 1996, in the case Baehr v. Miike, three same-sex couples sued the state of Hawaii, arguing that its failure to issue them marriage licenses violated the Equal Rights Amendment to the state constitution. A trial judge ruled that the state’s same-sex marriage ban was invalid, but while an appeal was pending, Hawaii voters passed a constitutional amendment banning same-sex marriage. The legislature, however, to avoid granting full marriage rights, provided for a new class of partners called “reciprocal beneficiaries,” similar to current domestic partnership laws in some other states. (Hawaii law has since changed. As of January 1, 2012, same-sex couples may enter into civil unions, securing all the rights and responsibilities of marriage in that state.)

The Hawaii reciprocal beneficiary law effectively ended the 1996 case. Although not quite the victory that the same-sex marriage movement had hoped for, it was still groundbreaking at the time because it was the first statewide domestic partnership law passed in the United States.

The Early Beginnings of State and Federal DOMA Laws

Worried legislatures in other states passed laws banning same-sex marriage, called “Defense of Marriage” acts (state DOMAs).

The Federal Defense of Marriage Act (DOMA) was passed in 1996. Section 3 of DOMA specifically prohibited the federal government from recognizing same-sex marriages by defining marriage as a "union between a man and a woman." As a result, same-sex married couples could not receive any of the federal benefits that opposite-sex married couples do, such as federal tax benefits, immigration status, and Social Security benefits. This has since changed – see United States v. Winsdor below.

Furthermore, in anticipation of the time when forward-thinking states would allow full legal marriage for same-sex couples, the federal DOMA allowed states to ignore a same-sex marriage entered into in another state.

Vermont: Baker v. State

In 1999, soon after the Baehr decision in Hawaii, across the country the Vermont Supreme Court ruled that prohibiting same-sex marriage violated the provision of the Vermont constitution guaranteeing equal rights to all citizens, because it denied same-sex couples the rights to which straight couples were entitled. (The case was Baker v. State.) But instead of ordering the government to issue marriage licenses to gay and lesbian couples, the court left it up to the state legislature to remedy the situation. In response, the legislature passed a law creating the civil union registration system. (Under this system, until 2009 when same-sex marriage became legal in Vermont, same-sex couples could only enter into a civil union ceremony and were then subject to all state laws applying to married couples.)

Massachusetts Legalizes Same Sex Marriage

In 2003, Massachusetts became the first state to legalize same-sex marriage when the Massachusetts Supreme Court ruled that the state’s DOMA law violated the Massachusetts constitution. (That case was Goodridge v. Dept. of Public Health.) In Goodridge, again the plaintiffs were same-sex couples who had been denied marriage licenses. Thousands of couples have married in Massachusetts since May 2004, when the new rules went into effect.

The Marriage Equality Movement Gains Widespread Support

With all major polls showing that a majority of Americans now support gay marriage, several states have recently passed laws legalizing same-sex marriage.

In October 2008, the Connecticut Supreme Court ruled that the state's civil union law discriminates on the basis of sexual orientation and was unconstitutional and that "the segregation of heterosexual and homosexual couples into separate institutions constitutes a [constitutionally] cognizable harm." The court held that same-sex couples must be allowed to marry, and the state started issuing marriage licenses in November 2008.

In April 2009, Iowa and Vermont joined the ranks of states with full marriage equality.

In June 2009, the New Hampshire legislature passed a same-sex marriage bill. Though Governor John Lynch personally opposes gay marriage, he signed the bill into law the same day. "Today, we are standing up for the liberties of same-sex couples by making clear that they will receive the same rights, responsibilities -- and respect -- under New Hampshire law," Lynch said. The bill became effective in January 2010.

In March 2010, same-sex marriage became legal in the District of Columbia after the city council's vote went through a Congressional approval period without a glitch.

In 2011, the New York legislature legalized gay marriage.

A same-sex marriage bill was approved by Maine voters, 53-47 percent, on November 6, 2012, and on December 29, 2012, same-sex marriage became legal in Maine.

On November 6, 2012, voters in Maryland and Washington State approved same-sex marriage by popular vote.

On May 2, 2013, Rhode Island became the tenth U.S. state to recognize  same-sex marriage. The new law took effect on August, 1, 2013.

On May 7, 2013 the Delaware Senate voted to legalize  same-sex marriage. The law took effect in Delaware on July 1, 2013.

On May 13, 2013, the Minnesota State Senate voted 37-30 to legalize same-sex marriage.  Same-sex marriages began in Minnesota on August 1, 2013.

California: Proposition 8

One of the most intense marriage equality struggles took place in California, concerning a state constitutional amendment known as Proposition 8.

In 2008, the California Supreme Court effectively legalized same-sex marriage in that state. Opponents of same-sex marriage placed a state constitutional amendment (Prop. 8) on the ballot, seeking to restore an opposite-sex-only definition of marriage. Prop. 8 passed in November of 2008, but the law was struck down by Federal Court District Judge Vaughn Walker as unconstitutional. (Perry v. Brown.) Prop. 8 supporters appealed this decision and the case was selected for review by the U.S. Supreme Court (SCOTUS).

On June 26, 2013, SCOTUS dismissed the California Prop. 8 case, Hollingsworth v. Perry, on a legal technicality. The Supreme Court ruled that the proponents of Prop. 8 did not have “legal standing” to appeal where state officials, including the governor, refused to defend the law. Lack of standing means that the Prop. 8 supporters could not show they suffered a sufficient harm from the lower court’s decision to support their participation in the case.

Chief Justice John Roberts, writing for the majority, said that the Prop. 8 supporters had no “personal stake” in defending it, at least no more than other ordinary citizens of California. “It is not enough,” Roberts wrote, “that the party invoking the power of the court have a keen interest in the issue.” SCOTUS remanded the case to the Ninth Circuit.

Once the Ninth Circuit Court of Appeals lifted the stay of Judge Walker’s 2010 order, gay marriages resumed in California. On June 28, 2013, both of the plaintiff couples in the  Perry  case were married in public ceremonies. California State Attorney General Kamala Harris officiated the wedding of plaintiffs Sandra Stier and Kris Perry at San Francisco City Hall. Shortly after, Los Angeles Mayor Antonio Villaraigosa married the other plaintiffs, Paul Katami and Jeff Zarrillo.

United States v. Windsor

On June 26, 2013, the same day the U.S. Supreme Court decided the California Prop. 8 case, SCOTUS issued another major decision in  United States v. Windsor. The court struck down the section of DOMA that defined marriage as a union between a man and a woman.  This historic ruling marked a monumental step in the marriage equality movement.  

The Windsor case involved Edith Windsor and Thea Spyer, who married in Canada in 2007, after being in a relationship for 40 years. When Spyer died in 2009, Windsor was forced to pay $363,053 in taxes on Spyer’s estate, which she would not have had to pay if she’d been Spyer’s husband. She argued that DOMA, which prevented her from being considered Spyer’s spouse for federal purposes, cost her $363,053.

In a 5-4 decision, with the majority opinion written by Justice Anthony Kennedy, the Supreme Court found that the section of DOMA defining marriage as between a man and a woman violates the Equal Protection Clause and is therefore unconstitutional.

Under the Supreme Court's decision, same-sex married couples living in one of the 14 U.S. jurisdictions that recognize same-sex marriage would qualify for federal benefits previously limited to opposite-sex married couples, including federal tax benefits. However, the Court did not address Section 2 of DOMA, which allows states to ignore valid same-sex marriages entered into in other states, or whether that would impact federal recognition. For example, the Court did not address whether the IRS (or other federal agencies) would recognize the marriages of same-sex married couples living in non-recognition states.

These issues are becoming clearer as time goes on. Right now, we now know that some federal agencies, such as the Social Security Administration, will continue to look to the place of residence (where a couple lives) to determine whether married couples qualify for benefits. As a result, same-sex married spouses living in non-recognition states will not be eligible for Social Security benefits based on their spouse's work record.

Other federal agencies, such as the U.S. Citizenship and Immigration Services (USCIS) will look to the place of celebration (where the marriage was performed) to determine whether same-sex married couples are eligible for immigration status.

In August 2013, the U.S. Department of Treasury ruled that all same-sex couples that are legally married in any U.S. state, the District of Columbia, a U.S. territory or a foreign country will be recognized as married under all federal tax provisions where marriage is a factor. This includes provisions governing:

  • filing status
  • personal and dependency exemptions
  • standard deductions
  • employee benefits
  • IRA contributions
  • the earned income tax credit, and
  • the child tax credit.

The Treasury Department further clarified that federal recognition for tax purposes applies whether a same-sex married couple lives in a jurisdiction that recognizes same-sex marriage (such as California) or a non-recognition jurisdiction (such as Texas). But the decision does not apply to same-sex couples in domestic partnerships or civil unions.

Post-Windsor Developments

On November 13, 2013, Hawaii’s Governor Neil Abercrombie approved a bill legalizing same-sex marriage in the state. Same-sex weddings began taking place in Hawaii on December 2, 2013.

Although the Illinois Senate approved a same-sex marriage bill  on November 6, 2013, Governor Pat Quinn did not sign that bill into law until November 20, 2013. Same-sex weddings should begin taking place in Illinois on June 1, 2014.

On October 22, 2013, the Oregon Department of Justice ruled that all state agencies in Oregon must recognize valid same-sex marriages performed in other jurisdictions, even though same-sex couples cannot get married within the state. Oregon state agencies must now recognize valid same-sex marriages performed in other states and countries for the purposes of administering state programs and extending benefits, including medical benefits and tax exemptions.

For More Information

In total, 16 states and the District of Columbia have opened the doors to legal marriage for same-sex couples. Those states are California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Rhode Island, Vermont and Washington, plus D.C..

To learn more about same-sex laws, see our section devoted to Same Sex Laws & Marriage.

To stay up to date on the progress of marriage equality, check the legal updates at www.nolo.com. You can also find a timeline of important events in the history of same-sex marriage on Wikipedia.

Adapted from A Legal Guide for Lesbian & Gay Couples, by Denis Clifford, Frederick Hertz, and Emily Doskow.

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